Hi,
I had 2 fixed term two year contract (in Scotland) which

Customer Question

Hi,

I had 2 fixed term two year contract (in Scotland) which expired on 01/02/2014. No notice period was provided and therefore I stayed in my current position.

On 28/02/2014 I was verbally informed that my performance was under review for 3 months, backdated to 01/02/2014 and given 7 performance targets to meet by this date. No written correspondence has been received in this regard to date.

A similar situation arose with a colleague on the same type of contract as me last year and he was dismissed. At the time of his review period another colleague told me I was "as ****" as him and "everybody thought so" and therefore I have no reason to believe my contract will be extended further.

I am on a training contract and after eight weeks the two junior roles were switched, therefore those to whom I was assigned to be trained, in cognisance of an external regulatory body to become fully qualified, I no longer worked for and the training roles were never realigned. This caused friction between my senior colleagues it then had an impact on their performance targets for promotion etc. It is set in the training requirements (the company has a training agreement with the external body) that I should have 3 monthly reviews of work experience and progress, however these did not take place and my last meeting in this respect was May 2013.

I raised my concerns last March that my training was not being progressed as it should and this was discussed again in May 2013 and various promises were made, however all other meetings and discussions were continually cancelled - on a daily basis at times.

No mention of my contract expiry was ever made, however as the training aspect of my existing contract has not been upheld, I am asking what position I am in legally.

On the one hand, I am cynical that they are not seeking a reason to terminate my contract - as with my former colleague last year - and simply following due process. On the other hand, they are suggesting that should I meet the 7 performance targets a new contract will be available.

In your experience, is this common practice, or what advice may you be able to offer?

It seems the professional has left this conversation. This happens occasionally, and it's usually because the professional thinks that someone else might be a better match for your question. I've been working hard to find a new professional to assist you with your question, but sometimes finding the right professional can take a little longer than expected.

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Thanks for getting back to me. The first important thing to consider is that if an employee has been continuously employed with their employer for at least 2 years they will be protected against unfair dismissal. This means that to fairly dismiss them their employer has to show that there was a potentially fair reason for dismissal and that a fair dismissal procedure was followed.

According to the Employment Rights Act 1996 there are five separate reasons that an employer could use to show that a dismissal was fair: conduct, capability, redundancy, illegality or some other substantial reason (SOSR). The employer will not only need to show that the dismissal was for one of those reasons, but also justify that it was appropriate and reasonable to use in the circumstances. In addition, they need to ensure that a fair dismissal procedure was followed and this would depend on which of the above reasons they used to dismiss.

The fact that you are fixed-term contract employee would not change your position much, apart from The Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 giving you extra rights as they prevent the less favourable treatment of fixed-term employees. They ensure that fixed-term employees have more or less the same rights in the workplace as permanent employees.

When it comes to the expiry of a fixed-term contract, the law regards that as a dismissal. Any employee whose fixed-term contract expires without renewal on the same terms as before will have the same rights to unfair dismissal protection as a permanent employee, as long as they have the required length of service, which as mentioned you do.

The next step is to consider if the employer can dismiss you for a fair reason and also what they must do to ensure that such a potential dismissal is fair. In your case you have been told that you are facing poor performance allegations. An employee's poor performance is a potentiality fair reason for dismissal under the Employment Rights Act 1996, as it would amount to lack of capability. This should be assessed by reference to an employee's "skill, aptitude, health or any other physical or mental quality" and must relate to the work that they were employed to do.

In order for a dismissal for poor performance to be fair, an employee must be warned that they need to improve, be given reasonable targets for improvement within a realistic timescale and be offered appropriate training and/or support during the monitoring period.

Generally, the reasonableness of such dismissals would be measured against the following criteria:• Did the employer have reasonable belief in the employee's incompetence;• Was the situation investigated and was the employee given the opportunity to voice their side of the story;• Was the employee aware of what was required of them in terms of satisfactory performance;• Were steps taken to minimise the risk of poor performance through training, supervision, etc;• Was a proper appraisal conducted and was the problem identified in a timely manner;• Was the employee told of the consequences of failing to improve and were they actually given the chance to improve their performance;• Did the employer consider offering alternative employment.

The above are just examples and what a tribunal would generally look for when deciding the reasonableness of a dismissal. If there is a genuine belief or evidence that the employer has acted in a rather heavy-handed manner and not satisfied at least some of the above requirements, the dismissal could be challenged.

The first step is to appeal directly to the employer within the allocated time for an internal appeal. After that the only viable option is to consider a claim for unfair dismissal in an employment tribunal. There is a strict time limit of 3 months from the date of dismissal to issue such a claim.

I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you and feel free to bookmark my profile for future help:

In your experience, once this process has commenced is it likely dismissal will be the end result?

Moreover, what would be the purpose of waiting until 28/02/2014 to inform me of this and then backdate to 01/02/2014? Surely only information from 28/02/2014and the following 2 months can be used in the review?

If I resign prior to the May review period do they include this information on a reference?

To be honest it is impossible to say from experience if it will result in a dismissal or not - this is down to the employer's own agenda so it would not necessarily follow 'past experience' as such.

Whilst the employer can state that the poor performance goes back to the beginning of the month, they should be careful about penalising you for that period where you did not know you were not performing well. So they could state your poor performance dates back to 1 Feb, but should only monitor your performance from the date you were advised of this and had the opportunity to improve.

Even if you resigned now, they can still mention anything factually correct about you, so anything that has happened so far could still be included in a reference.

If your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you

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